Should Law Professors Know the Rules of Professional Conduct?

I graduated from law school before the ABA mandated courses in professional responsibility. I was also sworn into the bar before my jurisdiction required candidates to take the MPRE. As a judicial clerk and law firm associate, I knew a few of the most relevant (to my position) rules--but that wasn't many. For most of my tenure as a law professor, I ignored the rules; I figured they were the province of my colleagues who taught Professional Responsibility.

Then, when I waived into the Ohio bar a few years ago, I had to sign an affidavit swearing that I had read Ohio's rules. I don't like to lie, and I knew there must be a rule against that, so I spent a few days reading all of the rules and comments. Now I'm a convert: Every law professor should know her state's rules of professional conduct. In fact, I believe that every law professor (including those without law licenses) should (1) pass the MPRE and (2) participate regularly in workshops related to the rules of professional conduct. Why so? There are at least five reasons.

1. We're a Profession

Professions are known by their ethical rules. It's hard to claim professional status, in fact, without an ethical code. Equally important, a profession promises to organize itself around its ethical code and to enforce those principles against its own members.

In law, we have delegated our ethical code to specialists. There are professors who teach those rules, there are disciplinary committees to enforce the rules, and there are lawyers who specialize in representing lawyers charged with misconduct. At least in the academy, the rest of us noodle along without much thought about the Rules of Professional Conduct.

Up to a point, this specialization makes sense. We can't all know everything, and we need designated groups to determine whether ethical violations have occurred. If I were charged with an ethical violation, moreover, I'd want to be represented by an attorney well versed in the field.

The attitude, however, undermines our professional identity. A professional code is different from a set of rules that one consults only when applicable to a particular circumstance; our ethical code is supposed to bind us together as a profession. It can't do that unless everyone in the profession--especially those who educate new members--are familiar with its provisions. I suspect there are some law professors who (like me for many years) have never read the full Rules of Professional Conduct. At a professional school, that's just wrong.

2. We Send the Wrong Message

As professors, we're adept at marking the boundaries of our expertise. When an Evidence student asks me a question about the Fourth Amendment, I refer her to a colleague who teaches Criminal Procedure. I know a lot about the Sixth Amendment's Confrontation Clause, but not much about Fourth Amendment Search and Seizure. Even for relatively simple questions, where I think I know the answer, I prefer for students to check with a colleague who knows more.

When we apply that approach to Professional Responsibility, however, we send students a dangerous signal. We suggest that ethical principles are a specialized field that one can choose to know or not. I.e., just as I choose to focus on Evidence rather than Criminal Procedure, I can leave Professional Responsibility to others.

But our ethical code is supposed to infuse our practice; lawyers are supposed to know, and abide by, the rules throughout their careers. Professors are the first professional role models for new lawyers. If we tell students that only a few members of our faculty--who are often adjuncts--know those rules, we suggest that students can adopt a similarly distanced stance.

3. We Make Mistakes

Law professors, like everyone else, know that lawyers shouldn't lie, cheat, or steal. We also get the zealous advocacy bit. But our ignorance about other ethical rules leads us into trouble. I once participated in a discussion between two professors [update: not from my faculty] who taught Employment Law. They were earnestly discussing why law firms don't require their lawyers to sign covenants not to compete. I.e., why don't firms contractually prohibit their members from opening a new practice in the same city for a year or two after leaving a firm?

The professors analyzed differences between law practice and other types of work; they also drew upon economic theory. They did not, however, know that Model Rule 5.6 prohibits lawyers from imposing covenants not to compete. When I pointed out the existence of this rule, it was news to them. And, in fairness, I wouldn't have known about the rule if I hadn't read the Model Rules so recently. It's troubling, though, that experts in Employment Law didn't know about our profession's ethical stance on restrictive covenants. Do students leave their classes thinking that lawyers can impose these covenants?

I can imagine similar mistakes in other fields. How many Criminal Law professors have posed hypotheticals in which a single lawyer represents two codefendants? See Model Rule 1.7, Comment 23. How many refer to contingent fees without knowing the practice areas in which they are forbidden? See Model Rule 1.5.

Even if students figure out that we're wrong on these points, we send a strong message that the rules don't matter; that it's ok to ignore them unless you're sitting in a class on Professional Responsibility.

4. We Don't Understand the Practice of Law

Most of our Rules of Professional Conduct are about the business side of law practice. There are rules about setting fees, advertising, soliciting clients, receiving referrals, and sharing profits. Even the rules that focus on client duties are hard to understand outside their business context. Why do lawyers bicker so much about the rules governing conflicts of interest? Because those rules can force a firm to decline needed business.

I agree with critics who maintain that law professors should have more practice experience--and that our experience should be more varied. (I've tried to remedy my own deficits by learning the ropes of both criminal prosecution and defense within our clinics. More about that, perhaps, in another post.) Law is not a theoretical discipline; it draws meaning from the context in which it is practiced. There is an important place for theory in law schools, but that theory needs more connection to practice. We would be better teachers and scholars with that connection.

Equally important, professors should keep current with contemporary law practice. Many of us envision a practice world that no longer exists: one with office conversations rather than emails, one in which lawyers talked to one another (rather than tapping on phones) while sharing a cab across town, one without internet research. From our students' perspective, we are doubly removed from reality. The little practice experience we had occurred in a different world.

Requiring professors to know--and engage with--the Rules of Professional Conduct offers one small, but important, step toward overcoming our experience gap. If we know and discuss the rules, we will at least understand some of the constraints on law practice, some of the reasons why lawyers act as they do, and some of the pressure points for our graduates. 

5. We Should Be Ethical Role Models

Over the last few years, many critics of legal education have drawn analogies between law schools and law practices. Practitioners, they've argued, could not get away with the way in which law schools advertised employment statistics, scholarship programs, bar passage rates, or other aspects of their programs. I think they're right: the Rules of Professional Conduct require lawyers to meet high standards when communicating with current or prospective clients.

I personally would apply the Rules directly to law schools and legal educators: I believe that we are "lawyers" who provide "services" governed by those rules. But I don't need to go that far in today's post. Even assuming that legal education and scholarship are not "services" provided by "lawyers," we surely have an obligation to model ethical behavior for our current and prospective students. Our actions toward students create a template for the type of professional behavior our students will enact. Just as children learn from what their parents do (not what they say), students emulate their teachers.

If law professors immersed themselves more deeply in our profession's ethical rules, I think we would be more thoughtful about our own behavior. Forget what everyone else is doing and what we think we can get away with. What information should we share with prospective students? Which students should we admit? Should we reserve most of our scholarship money for students with high LSATs? For too long, we didn't even ask those questions.

The Proposal

For all of these reasons, I would adopt an ABA standard that requires every person who teaches half time or more in an accredited law school to (1) have passed the MPRE, and (2) participate regularly in workshops focused specifically on the Rules of Professional Conduct. I would define "regularly" as 6 hours every 3 years. Professors could satisfy the requirement with the same courses used to fill CLE requirements; for those who maintain active licenses, this would require little, if any, additional attendance.

The requirement could also be met through workshops that do not qualify for CLE. Discussions centered on an academic paper would count--as long as the paper genuinely engaged with the Rules of Professional Conduct, rather than more general ethical principles. I would encourage faculty, however, to create workshops focused on recurrent problems in practice--and to invite practitioners to engage in those discussions. We are part of a profession that is both lively and troubled; we need to know more about both of those characteristics.

Would this requirement apply to professors who have not graduated from law school or been admitted to the bar? Absolutely. These professors are honorary members of our profession, entrusted with educating new members of the profession. I personally welcome their interdisciplinary perspectives, but they should know the ethical rules that bind our work. I wouldn't presume to teach half-time in a medical school without knowing the ethical code that doctors follow--even if I taught only the "law" to the students. We should be equally proud of our profession and its ethical tenets. And if we're not, well, knowing about the rules is the first step toward changing them.

 

 

Comments

[Jojo]

Deborah,

A very reasonable proposal! You get it. Your story about employment law profs made me wince. Faculty prefer to live in the theoretical world, and resent law in practice. The few times I've come across faculty in practice, I've found them to be good writers, intelligent, impractical, unpersuasive, and ineffective.

How can two "experts" in employment law who teache at a quality law school not know that there are prohibitions on restrictive covenants in the legal profession? (It is not obscure -- the medical profession is debating whether they are volative of med ethics too). The emperor is naked.

[Scott Fruehwald]

I would go further. All law professors should help their students develop their professional identities. Learning the ethical rules and how to apply them is not enough. Law students need to understand what it means to be part of a profession. They need to develop their inner selves. This is what the Carnegie Report meant by the third apprenticeship--the "apprenticeship of identity and purpose," which "introduces students to the purposes and attitudes that are guided by the values for which the professional community is responsible." Students cannot develop professional identity in a single class; law professors must help them develop it across the curriculum. Students need to be taught to reflect on the law and their place in it, and they need to be exposed to ethical problems in all doctrinal areas.

Since the Carnegie Report, many law professors have been writing about professional identity. There will be several sessions on it at the AALS Conference this year, including a discussion group, Introducing Professional Identity Development into the Law School Curriculum. I have also recently published a text to teach law students professional identity--How to Develop Your Professional Identity: Creating Your Inner Lawyer (2015), which is available on Amazon.

[Sy Ablelman]

The answer is unequivocally no. You need to teach and know what any decent 8 year old knows. You professors need to teach these newbie idiots you've been conferring law hoods on lately the following. 1. Do not Steal from clients. Taking a client's PI settlement earmarked for a treater/medical provider and putting the cash in a jewelry box in your home is theft. 2. Having sexual intercourse or exposing one's genitals in your law office to any female client or employee is forbidden 3. Billing out 80K in false cab fair receipts to a client is a no no even though you feel cheated by your law firm's generous salary because the firm took you away from your family. 4. Calling yourself the best lawyer in town in electronic communications, have a 10 AVVO rating by answering a few on-line questions and getting other newbies to shill for you and then representing to clients that you can get them huge cash payouts is the equivalent of bilking them especially if you are a solo out less than one year. You don't know crap. 5. Running your client's credit card in a divorce without permission is theft. 6. Outright lying to a federal court about being sick (vomiting) to avoid an oral argument in which you outsourced a brief is the very definition of misrepresenting material facts to a tribunal. Forget the Rules of Professional conduct, you guys need to pop open Dr. Seuss book.

[Allen]

Here's a narrow proposal: The ABA 509 disclosure forms should require schools to report how many members of the full-time faculty are currently licensed to practice law in the jurisdiction where the school is located. Of course, bar membership doesn't necessarily signal an awareness of the realities of practice, just as its absence does not signal a lack of that awareness. But there's likely a correlation, and it would be easy for law schools to collect that information and report it to the ABA.

[John Steele]

I'd suggest that it's more important for all law schools to (1) treat PR as a serious and important course, and (2) treat PR as a serious and important field for scholarly study. (Many schools do; many schools don't.)

There is also a potential danger in demanding PR expertise from professors who do not practice law, work hard at studying actual practice, or work hard at understanding how the law of lawyering really plays out.

[Jojo]

Make bar admission a requirement for tenure. Tenured law faculty are expected to be members in good standing of the Ohio bar, unless they hold a joint academic appointment in another department too.

I can think of no good reason why a law school should not require the faculty to be members in good standing of the local bar, and many reasons to so require it.

[Allen]

Jojo, I think there are good reasons not to require an active bar license for every professor.

First, maintaining a bar license can be expensive. Someone has to pay for it.

Second, maintaining a license can require a lot of wasted time, such as satisfying CLE requirements, which are pretty silly for law professors but are still required in the jurisdictions I know of.

Third, some law professors move around a lot, and only some states would allow them to waive the bar exam. It's not clear why a professor who wants to accept an offer from a school in a different state should have to pass a new bar exam to do so.

Finally, some professors teach classes that don't touch on the kinds of issues that a bar license might make relevant.

That's why I think simply reporting the number of licensed professors would be better.

[[M][a][c][K]]

Allen:

Was you post intentionally or unintentionally facetious?

[Scott Fruehwald]

Bar admission means nothing. Instead, law schools need to devote as much attention to the third Carnegie apprenticeship, the "apprenticeship of identity and purpose," as they currently do to the other two. In this way, future law professors will be educated in what it means to be a member of the legal profession.

I use this quote in my professional identity book:

"Egan et al. (2004), contrasting legal education with medical education, note that legal ethics does not attempt to teach foundational frameworks for making moral judgments, and does not concern itself with the development of altruism, integrity, or character. Whereas in medicine the debate is over how to promote integrity, altruism, or strength of character, legal ethics is concerned with teaching legal rules to enable students to pass a professional responsibility examination required for licensure in all states. Efforts to influence moral judgment such as those reported by Hartwell (1995), the recent focus by St. Thomas University School of Law to promote professionalism focused on ideals, or efforts to study the relationship between moral judgment and professional characteristics are the exceptions in legal education." (Muriel J. Bebeau & Verna E. Monson, Guided by Theory, Grounded in Evidence: A Way Forward for Professional Ethics Education, in Handbook of Moral and Character Education 564 (2008)). The current approach is not the best approach to educate future lawyers and law professors.

[Anon]

Another silly proposal from a burned out law prof with too much time on her hands over the holidays. For example, what is the evidence that law profs are not familiar with the rules even if they are as old as Law School Truther in chief DJM?

[Allen]

[M][a][c][K], if you have a reason why my comment was so silly that you could dismiss it that way, perhaps you could have the common decency to provide it? Your online reputation precedes you, but perhaps a bit of decency might be in the Christmas spirit.

[Twbb]

Allen, law professors are as a rule very well-compensated both financially and in terms of a light work schedule. They can make that sacrifice quite easily. If I can fulfill my CLE and pay my bar fees on a grad student stipend, a law professor making 5 times what I do teaching 2-3 classes a semester can easily do so.

[[M][a][c][K]]

Allen:

Are you seriously suggesting that you don't realize how utterly oblivious, clueless and ludicrous your post was? How you presented yourself as pretty well a caricature of the modern law professor?

You poor baby, you'd have to pay bar dues - be licensed in the profession you choose to teach. Do you even know what the biennial (typically) dues are in your state? You'd have to take CLE courses - what instead of seeing giving them as a nice little sideline? Gosh, you might move - lawyers, you know, the profession you pretend to teach move too you know (admissions so far, 3 countries, DC, NY, Fed Courts of Appeal) etc. etc) but hey, that would "harsh your mellow". And best of all, to paraphrase your last point "I'm a law professor - people expect me to learn more about the law than I'm interested in."

TWBB put it well, but I'd add, that you were unintentionally facetious, and did not understand how - that's embarrassing.

[Allen]

[M][a][c][K],

I'm an active member of the bar in multiple jurisdictions, including the one where I teach, and I have been for a long time. So I don't know why you think I don't know what bar dues are or what it's like to take CLE classes. I'm reminded of the old Rugby joke: "in rugby you kick the ball; in soccer you kick the man if you cannot kick the ball; and in gaelic football you kick the ball if you cannot kick the man."

I just think that mandating an active bar membership in the home jurisdiction for every professor doesn't make sense from a cost/benefit perspective. I do it, yes, but I don't think it makes sense for everyone for the reasons I noted.

[Enrique Guerra Pujol]

Ethics and Codes of Professional Responsibility are not always equivalent; why not require law profs to study moral philosophy instead?

[[M][a][c][K]]

Depends on whether you count raking as kicking - and in Gaelic elbows, knees and flat out charges are preferred. The rugby joke is to put it mildly, inaccurate.

If you are a member of the bar where you teach (and I'll tak your word for it), which was what I originally wondered, then I would have seen your comment as intentionally facetious, a deliberate effort to caricature law professors.

Do you really see paying bar dues as a massive financial imposition? My NY bar dues are tiny compared to being a member of certain courts, PI insurance, non-US admissions, etc. As for being a member of the bar in which you state is situated - it means two things - you are a member of the bar in the state where probably the majority of your students end up, and to the extent that being a professor is legal work, subject to discipline there. As for CLE - more than anyone else law professors need the minimum exposure to practice reality that CLE imposes - and yes many see it as a sideline.

So consider for a second that many of your audience are practitioners - do you really think they believe law professors are unfairly burdened by the minimal demand that they be admitted as lawyers and have a tiny part of the burden that entails?

[Allen]

[M][a][c][K], I think I've lost you on the idea of cost/benefit analysis. The question is not whether it's a "massive financial imposition." The question is just whether the marginal benefits exceed the costs.

On to CLEs: I've been giving CLE lectures for many years, and I'm glad you think they are useful. It's always rewarding when practitioners such as yourself tell me that my lectures are helpful for their practices. However, I'm skeptical that mandatory CLEs for professors would expose them to the "practice reality" you predict. It's pretty easy, and not uncommon, for law professor conferences to provide CLE credit for attending academic panels. If professors had to maintain a bar membership in a mandatory CLE state, professors would likely just go to more boondoggle conferences to luxury hotels paid for by students, such as those hosted every year by the AALS, SEALS, or Law and Society, etc., to satisfy their mandatory CLE requirements.

Finally, I like that your bragging about your bar memberships proudly included mention of your membership in the DC bar (almost all just waive in) and "Fed Courts of Appeal" (which just require paying the admission fee). I guess we all have achievements in life of which we are particularly proud.

[[M][a][c][K]]

If you knew what I had to do to be a member of DC. But hey - have fun with that, and the other countries too.

The question of benefit over costs dodges the point. Should a professor in a law school be a member in good standing of the profession he/she purports to teach. Should that professor (and should deans) be subject to professional discipline with the same attendant consequences. Should that law professor be subject to even a modicum of the burdens of the profession. You say no - the benefit is inadequate. Frankly, I cannot see it as a cost benefit analysis - especially when the costs are a minor inconvenience - which by the way was the view of law schools (and their professors) who pushed for mandatory CLE, seeing it 20-30 years ago as an income stream.

If you really think practicing lawyers are going to treat your original post about what a pointless burden and imposition ongoing bar membership is for law professors, you have evidently not broached this POV to them at CLE seminars. I stand by my view, it's hard to see your post as anything but facetious.

[Jojo]

Being admitted a member in good standing of the local bar will cost (excluding initial admission) $500 to $1,000 per year in bar dues and CLEs. If you make it a tenure condition, but not a hiring condition, much concern over restrictions on mobility disappear.

There is value in having the instructors of the profession be members of the profession. Too many in the academy have spent too much time in the academy. The law school training model is near 90 years old, and a relic from the time when there was enough paying demand for baby lawyers that another lawyer or firm of lawyers could be counted on to prepare the newbies to actually practice. That is not the state of the legal profession in 2015, and you all know it.

There is a glut, glut, glut, glut, glut! Like some perverse Soviet era factory, many in law school would be happy if overproduction rolled on, oblivious to the human consequences. There is enough paying work for 15,000 to 20,000 new entrants per year. There is not enough legal aid, government grants, or charity money to fund the unmet needs for free legal services. Just as you won't think and bloviate for free, lawyers cannot practice for free. That is the state of things, yet legal Ed seems hellbent on ruining the profession. It makes no sense other than law prof self preservation.

[anon]

Law professors should have real experience as lawyers and should be required to maintain their licensing. It's that simple.